TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "Agreement") dated as of
January 29, 1999, is by and between Nextel WIP Corp., a Delaware corporation
("NWIP"), and Nextel Partners Operating Corp., a Delaware corporation (the
"Company").
RECITALS
A. Nextel, through its subsidiaries, operates an iDEN-based wireless
communications system through which it provides wireless communications
services in various markets throughout the United States. To enhance its
ability to provide its customers with greater geographic coverage that is
consistent with its existing service, operations, and objectives, Nextel,
through NWIP, is entering into a contractual joint venture with Nextel
Partners, Inc. ("NPI") and its Subsidiaries, including the Company.
B. The agreement of the parties with respect to the formation and
operation of the contractual joint venture is set forth in the Joint Venture
Agreement of even date herewith, by and among NWIP, NPI and the Company (the "JV
Agreement"), and various Collateral Agreements. This Agreement is a Collateral
Agreement.
C. As part of the contractual joint venture, NWIP has agreed to
provide the Company with certain transition services for a limited time to
assist the Company in launching operations in the Territory.
In consideration of the mutual promises and covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, NWIP and the Company hereby agree as follows:
AGREEMENT
1. Defined Terms. Unless otherwise defined in this Agreement, capitalized terms
used herein have the same meanings as in the JV Agreement.
2. Transition Services. Commencing on the date of this Agreement, NWIP will
provide, or will cause other controlled subsidiaries of Nextel to provide, to
the Company and solely in connection with the Company's operation of an ESMR
Network in the Territory pursuant to the JV Agreement, those services set forth
on Exhibit A attached hereto and made a part hereof (each a "Transition
Service" and collectively, the "Transition Services").
3. Term. The Transition Services will be provided to the Company commencing on
the date of this Agreement and continuing with respect to each Transition
Service through the termination date set forth next to that Transition Service
on Exhibit A (in each case, the "Termination Date"), unless the Company elects
to terminate its use of any such Transition Service at an earlier date, as
provided for in Section 4(a) or the parties agree to extend the term of any
Transition Service pursuant to Section 5(b). The term of this Agreement will
run through the Termination Date or Amended Termination Date (as defined below)
of the last Transition Service(s) being provided hereunder.
4. Partial Termination. (a) The Company may terminate its use of any Transition
Service provided to it hereunder on thirty (30) days' prior written notice to
NWIP. On the 30th day following NWIP's receipt of such written notice, both the
Company's obligation to pay NWIP for such Transition Service (other than for
services rendered prior to the effective date of such termination) will cease
and NWIP's obligations to provide, or to cause to be provided, such Transition
Service will cease. The Company will have no right to a refund or offset of any
sums paid or owing to NWIP in connection with the termination of the Company's
use under this Section 4(a) of any Transition Service.
(b) The Company's termination of its use of any Transition
Service pursuant to Section 4(a) will in no way affect (i) NWIP's obligation to
perform or caused to be performed any Transition Services whose use has not
been so terminated or whose Termination Date as set forth on Exhibit A has not
yet arrived, or (ii) NWIP's right to receive any amounts due to NWIP from the
Company for any Transition Service, the use of which has not been terminated,
or for the terminated Transition Service through the effective date of its
termination.
5. Service Pricing. (a) Prior to its Termination Date, each Transition Service
will be provided to the Company at the appropriate unit price identified on
Exhibit A (with respect to each Transition Service, its "Unit Price").
(b) Effective on the Termination Date with respect to any
Transition Service, the Company and NWIP may agree in writing to extend the
term of such Transition Service by amending the appropriate Termination Date on
Exhibit A, pursuant to a writing signed by each of them (each new Termination
Date with respect to any Transition Service, an "Amended Termination Date").
Except as otherwise agreed by the parties in a writing signed by each of them,
with respect to any Transition Service that is given an Amended Termination
Date: (i) for the first 90 days following the Termination Date with respect to
such Transition Service, the Company will be charged for such service at the
Unit Price applicable to such Transition Service; (ii) beginning the 91st day
and ending the 179th day following the Termination Date with respect to such
Transition Service, the Company will be charged for such service at ** of the
Unit Price applicable to such Transition Service; and (iii) beginning the 180th
day following the Termination Date with respect to such Transition Service, the
Company will be charged for such service at ** of the Unit Price applicable
to such Transition Service, which charge will increase by ** every 30 days
thereafter, up to a maximum of ** of the Unit Price applicable to such
Transition Service.
(c) Nothing in this Agreement is intended to or shall limit
or restrict the parties' rights and obligations under Section 5.8 of the JV
Agreement and nothing herein is intended to or shall govern the provision or
pricing of any "Required Systems" or certain operating activities that cannot
be performed by the Company as set forth in Section 5.8 of the JV Agreement.
6. Billing and Payment. The parties' agreement concerning the procedures
governing billing and payment for the services provided and all other charges
and amounts assessed hereunder is set forth in Section 13.6 of the JV
Agreement.
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
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7. Assignment. Notwithstanding anything herein to the contrary, NWIP may
delegate its obligation to provide Transition Services hereunder to any
third-party vendor(s) used by Nextel or the NDS to provide similar services,
provided that each such third-party vendor agrees in writing to perform such
Transition Services on the terms set forth herein, and, provided, further, that
the cost of any such Transition Services provided by any such third-party
vendor shall be the actual charges imposed by such third-party vendor on Nextel
or the NDS for providing similar services. If NWIP delegates its obligation to
provide Transition Services hereunder to any third-party vendor, NWIP shall not
disclose the provisions of Section 5(b) hereof to such third-party vendor if
such third-party vendor is not then in possession of such information or such
information is not then available publicly.
8. Taxes. The Company will be responsible for all sales, use, and other taxes,
levies and charges (other than taxes based on net income or net profits) imposed
by applicable taxation authorities on the Transition Services provided to the
Company hereunder. If NWIP or any direct or indirect subsidiary of Nextel
performing Transition Services is required to pay any such taxes, levies or
charges, the Company will promptly reimburse NWIP therefor.
9. Service Levels and Non-discrimination. NWIP will provide, or will cause the
controlled subsidiaries of Nextel providing Transition Services hereunder to
provide, the Transition Services to the Company in substantially as timely a
manner and at substantially the same service levels as similar services are
provided to Nextel or any of its wholly owned subsidiaries. Neither NWIP nor
any other provider of Transition Services hereunder that is a controlled
subsidiary of Nextel shall discriminate against the Company in favor of Nextel
or any wholly owned subsidiary of Nextel in providing the Transition Services.
10. Breach. Any breach or alleged breach of this Agreement or disputes arising
hereunder will be resolved by the parties pursuant to the procedures set forth
in Article 12 of the JV Agreement and, in cases involving a billing dispute,
Section 13.6 of the JV Agreement, which are incorporated herein by this
reference.
11. Miscellaneous.
(a) Excusable Delay/Time Extension. Where performance by
either party to this Agreement is delayed by reason of an Excusable Delay (as
defined in the JV Agreement), the time for performance, and any otherwise
applicable time limit, schedule or deadline, shall be extended for a period of
time equal to the period of Excusable Delay.
(b) Amendments. This Agreement may be amended only by a
writing executed by the parties.
(c) Entire Agreement. This Agreement and the other
Transaction Agreements (as defined in the JV Agreement) set forth the entire
understanding of the parties hereto and thereto with respect to the subject
matter hereof and thereof, and supersede all prior contracts, agreements,
arrangements, communications, discussions, representations and warranties,
whether oral or written, between the parties, including but not limited to the
Memorandum of Agreement, dated as of May 1, 1998, among Wireless Investment
Partners, L.L.C., NWIP and Nextel, as amended.
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(d) Notices. Any notice, request or other communication
required or permitted hereunder must be in writing and is given: (a) when
received if personally delivered; (b) 12 hours after being sent by telecopy,
with confirmed answerback; or (c) 1 business day after being sent by priority
delivery by established overnight courier, to the parties at their respective
addresses set forth below.
To NWIP: Nextel WIP Corp.
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
To the Company: Nextel Partners Operating Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Either party by written notice to the other given in accordance with this
Section 11.4 may change the address or the persons to whom notices or copies
thereof are to be directed.
(e) Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original, and all
of which together will constitute one and the same instrument.
(f) Waiver. Except as otherwise provided in this Agreement,
any party may waive, in writing, compliance by the other parties thereto (to
the extent such compliance is for the benefit of the party giving such waiver)
with any of the terms, covenants or conditions contained in this Agreement
(except as may be imposed by law). Any waiver by any party of any violation of,
breach of, or default under, any provision of any of this Agreement, by any
other party will not be construed as, or constitute, a continuing waiver of
such provision, or waiver of any other violation of, breach of, or default
under, any other provision of this Agreement.
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(g) Third Parties. Nothing expressed or implied in this
Agreement is intended, or may be construed, to confer upon or give any person
or entity other than the parties hereto any rights or remedies hereunder.
(h) Severability. If any provision of this Agreement or the
application of such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision of this Agreement or invalidate or render unenforceable
such provision in any other jurisdiction. The parties will, to the extent
lawful and practicable, use their best reasonable efforts to enter into
arrangements to reinstate the intended benefits of any provision held invalid,
illegal or unenforceable.
(i) Choice of Law. This Agreement shall be governed by New
York law, without regard to choice of law rules that would result in the
application of another state's law.
(j) Construction.
(1) Words used in this Agreement, regardless of the
number or gender specifically used, will be deemed and construed to include any
other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context requires. The parties hereto have participated equally
in the drafting of this Agreement and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of authorship of any
provision of this Agreement.
(2) The schedules and exhibits attached to this
Agreement are incorporated herein and are part of this Agreement for all
purposes. Unless otherwise stated, any reference in this Agreement to an
exhibit, section or schedule is to an exhibit, section or schedule of this
Agreement.
(3) The headings in this Agreement are solely for
convenience of reference and are not to be given any effect in the construction
or interpretation of this Agreement.
(k) Agreement. This Agreement is one of the Collateral
Agreements identified in the JV Agreement. Accordingly, certain provisions of
the JV Agreement by their terms apply to this Agreement, including, without
limitation, Section 2.6, Article 12, and Sections 13.2, and 13.10.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
NEXTEL WIP CORP.
By: /s/ Xxxx Xxxxxxx
________________________________
Name: Xxxx Xxxxxxx
Title: Vice President
NEXTEL PARTNERS OPERATING CORP.
By: /s/ Xxxx Xxxxxxxx
________________________________
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer and
Treasurer
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